Gay Engineering Corp.

GAY ENGINEERING CORPORATION 451 Gay Engineering Corporation and Leslie P. Gibford. Case No. 20-CA-1477. August 12, 1959 DECISION AND ORDER On April 27, 1959, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the remedial portions of the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, including the granting of the General Counsel's motion for severance and dismissal of Case No. 20-CB-637 because of a settlement agreement in that case. The Board has con- sidered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, to the extent consistent herewith. 1. As no exceptions were filed to the Trial Examiner's findings that the Respondent violated Section 8(a) (1) and (3) of the Act by virtue of its illegal hiring-hall arrangement with Local 350, and its unlaw- ful discrimination against Gibford thereunder, we adopt such find- ings, pro forma. 2. Contrary to the contention of the General Counsel, we find upon the entire record, as the Trial Examiner did, that Gibford was made and refused a valid offer of reinstatement on August 29, 1958, and therefore that Gibford's back pay should terminate on that date. Accordingly, we find it unnecessary to pass upon the Trial Examiner's additional findings that Gibford also refused valid offers of reinstate- ment on October 31, 1958, and November 5, 1958.1 3. We find merit in the General Counsel's exception to the Trial Examiner's refusal to recommend the Brown-Olds remedy.' The Trial Examiner based such refusal on a stipulation that the Respond- ent and Local 350 brought themselves within the terms of the General Counsel's "reprieve" or "moratorium" with respect to the Brown-Olds ' The Trial Examiner's reference to this latter date as November 3, 19'58, is obviously an inadvertent error. 2 J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594. 124 NLRB No. 65. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedy, and also on the fact that the Brown- Olds remedy was not applied in the settlement agreement with Local 350. With respect to the stipulation , the Board has held that the remedy to be applied for the correction of unfair labor practices lies within the exclusive discretion of the Board, and that the Brown-Olds remedy is required where the closed-shop prohibitions of the Act are flagrantly ignored, despite a subsequent correction of unlawful hiring practices pursuant to the General Counsel 's suggested "reprieve." 3 Such was the situ- ation here where, according to the stipulation of the General Counsel and the Respondent , the Respondent and Local 350 commenced nego- tiations on the correction of their unlawful hiring practices on July 1,, 1958, a-nd' actually effected such correction by the November 1, 1958,, "deadline" date of the "reprieve," but nevertheless adhered to, these unlawful hiring practices in the interim when they discrimina- torily refused employment to Gibford on August 6 and 14,1958 . With-_ respect to the fact that the Brown- Olds remedy was not applied in the'. settlement agreement with Local 350, the Board has held that the fact that some respondents originally joined in a proceeding obtain Brown- Olds concessions in settling charges against them is not sufficient reason to omit the Board 's established remedy for the unfair labor- practices of those whose cases are litigated.' We believe that the Brown-Olds remedy is appropriate and necessary here in order to. expunge the coercive effect of the Respondent 's unfair labor practices. Accordingly, as part of the remedy we shall order the Respondent to. refund to its employees initiation fees, dues , assessments, and other- moneys paid by them as the price of their employment . The Respond- ent's liability for reimbursement shall begin 6 months prior to the., date of the filing and service of the charge against it , and shall extend to all such moneys thereafter collected , until November 1, 1958, the. date on which it was stipulated that the Respondent and Local 350. corrected their collective-bargaining agreement and hiring practices. to conform with the standards of the Mountain Pacific case (Moun- tain Pacific Chapter of the Associated General Contractors , Inc., 119. NLRB 883) .5 ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor- Relations Board hereby orders that Gay Engineering Corporation, Squaw Valley, California., its officers, agents, successors, and assigns,, shall : 1. Cease and desist from : (a) Giving effect to or performing any agreement or practice with Local 350 or any other labor organization which discriminates against. 3 See Argo Steel Construction Company, 122 NLRB 1077, footnote 17. 4 Morrison-Knudsen Company, Inc., of at., 123 NLRB 12. 5 See Argo Steel Construction Company, supra. GAY ENGINEERING CORPORATION 453 employees by affording preference in employment to persons dis- patched by Local 350, or discriminating in any other manner in re- spect to hire or tenure of employment or any term or condition of employment, thereby encouraging membership in Local 350, except as .are authorized by Section 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of ;the rights guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement as authorized by .Section 8(a) (3)' of the Act. 2. Take the following affirmative action which the Board finds will "effectuate the policies of the Act : (a) Make whole Leslie P. Gibford for any loss of pay suffered by :reason of the discrimination against him in the manner set forth in .the "Remedy" section of the Intermediate Report. (b) Reimburse all employees for all initiation fees, dues, assess- ments, and other moneys illegally exacted from them, to the extent set forth above. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all records necessary to compute the moneys due under this Order. (d) Post at its offices at Los Angeles, California, and at Squaw Valley, and at all its projects within the territorial jurisdiction of Local 350, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the 'Twentieth Region, shall, after being duly signed by authorized repre- sentatives of the Company, be posted by the Company immediately .upon receipt thereof and maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to all em- ployees are customarily posted. (e) Notify the Regional Director for the Twentieth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT maintain in effect any agreement or practice with Local Union 350, United Association of Journeymen and Appren- 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, or any other labor organization which, except as authorized by Section 8(a) (3) of the Act, dis- criminates against employees or applicants for employment who are not dispatched by Local 350, nor will we discriminate in any other manner in respect to hire and tenure of employment or any term or condition of employment, to encourage membership in said labor organization, except as authorized by said section 8(a) (3). WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement as authorized by Section 8 (a) (3). WE WILL make Leslie P. Gibford whole for any loss of pay suffered as a result of the discrimination against him. WE WILL reimburse all our employees for initiation fees, dues, assessments, and other moneys which they were unlawfully re- quired to pay to the above-named labor organization, as a result of the illegal hiring provisions in our contract with said labor organization. GAY ENGINEERING CORPORATION, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Leslie P. Gibford , the General Counsel of the National Labor Relations Board issued a consolidated complaint, and notice of hearing herein, on November 21, 1958, against Gay Engineering Corporation and Local Union 350, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.' The complaint, in substance , alleged that the Company and Local 350 had jointly com- mitted unfair labor practices by (1) giving effect to their collective -bargaining agreement, whereby employees of the Company were secured exclusively through a hiring hall operated by the Local, which failed to meet the requirements of the Mountain Pacific decision, and was otherwise violative of the Act; and (2 ) discrimi- nating in the hire, tenure, and terms of employment of Leslie P. Gibford, the Charging Party. 'In this report Gay Engineering Corporation is referred to as the Company or Gay ; Local Union 350, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Is referred to as Local 350, or the Local, and its parent labor organization as the International, and its sister locals by their number ; the General Counsel of the Board and his representa- tive at the hearing, as the General Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended, as the Act. GAY ENGINEERING CORPORATION 455 The Company and Local 350 by their duly filed answers denied the commission of the unfair labor practices. Pursuant to the above notice, a hearing was held before the duly designated Trial Examiner at San Francisco, California , on February 3 and 4, 1959 . At the opening of the hearing, the General Counsel announced that the General Counsel and Local 350 had entered into a settlement agreement , immediately prior to the commencement of the hearing, and that as soon as the agreement was embodied in a formal document he would introduce the settlement agreement in evidence, and move for the severance of the cases and the dismissal of the allegations of the complaint relating to Local 350 . Accordingly, the evidence received at the hearing was directed to the alleged unfair labor practices of the Company , and in the course of the proceeding the settlement agreement aforesaid was received in evidence, and the motions for severance and dismissal were granted.2 The Settlement Agreement The settlement agreement,3 drawn in the Board's conventional form, provided for the payment of back pay in the sum of $2,478 to Gibford, and for the posting of an appropriate notice. The settlement agreement did not provide for the appli- cation of the Brown-Olds remedy, and this fact gave rise to one of the Company's contentions at the hearing, namely, that in the light of all the evidence the Brown- Olds remedy should not be applied against the Company alone, in the event it was found guilty of the unfair labor practices alleged in the complaint . This phase of the proceeding will be set forth with more particularity hereafter. Thereafter the hearing proceeded with the Company as sole respondent. All parties were represented by counsel and were afforded an opportunity to examine and cross-examine witnesses and to introduce evidence relevant to the issues. The General Counsel and the Company have both presented briefs which have been considered. The Issues The contentions of the General Counsel have been set forth in the reference to the complaint. For the Company, counsel raised three principal contentions: (1) that the Company did not commit the unfair labor practices alleged; (2) that the Company offered reinstatement to Gibford to a substantially equivalent position on August 29, 1958, and various dates thereafter , all of which offers were refused by Gibford; and ( 3) that the Brown-Olds remedy in the circumstances of this case should not be applied against the Company alone. In connection with the above , it should be noted that at the opening of the hearing, the General Counsel stated frankly upon the record that he sought the application of the Brown-Olds remedy against the Company. He also stated that he did not seek to impose back -pay liability upon the Company after November 10, 1958, upon which date the Company made a valid offer of reinstatement to Gibford, which was refused. However, the General Counsel contended that until that date no valid offer of reinstatement had been made by the Company. From my observation of the witnesses , and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a California corporation engaged in the engineering and the installation of refrigerating systems. The principal office of the Company is located in Los Angeles, California, but it performs work throughout the United States, and annually performs services valued in excess of $ 100,000 at places located outside the State of California. Therefore, it is found that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 350, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 On April 13 , 1959 , the General Counsel moved to correct the transcript of testimony in certain respects . The motion was granted in part, by Order dated April 21, 1959. A General Counsel's Exhibit No . 39 in evidence. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background Squaw Valley is a ski resort in the Lake Tahoe area of California and has been selected by the Olympic Games Committee as the site of the Winter Olympic Games of 1960. In the preparation of facilities for the Games it was necessary to construct skating rinks, ski runs, bobsled runs, and all types of accommodations for the participants and spectators at the Games. The site of this construction work is a wilderness area remote from any sizable town, the nearest city of any consequence being Reno, Nevada, which is approximately 40 miles from Lake Tahoe. Local 350 has its headquarters at Reno, Nevada, and its geographical jurisdiction under the International extends to the Squaw Valley and Lake Tahoe area. It is a local of small membership as compared with locals in metropolitan areas. The Company, which specializes in engineering and refrigeration work, was engaged by a prime contractor to install the refrigeration system for the ice-skating rink and other facilities at Squaw Valley. Prior to the commencement of its opera- tions, the Company was concerned with recruiting an adequate skilled labor force composed principally of welders and pipefitters in this remote area. It is undisputed that approximately 3 weeks prior to June 11, 1958, John S. Padrick, general manager of the Company, telephoned Adam Alger, business agent of Local 350, and inquired from Alger as to the availability of pipefitters and welders at Squaw Valley. Alger told Padrick that the Local could not supply pipefitters and welders in the number required by the Company from its own membership, but he felt sure that with the assistance of neighboring locals the Union could supply the required craftsmen. Padrick outlined his requirements and Alger agreed to notify neighboring locals of the job opportunities at Squaw Valley. The Contract On June 11, 1958, the Company began its construction operations on the Olympic skating rink at Squaw Valley. Robert Brawley was the superintendent on the job site. At the hearing Brawley testified that when the job commenced, Padrick gave him a contract, with instructions that the contract was to govern the rates of pay and working conditions on the job. Approximately a month later, a second contract was given to him as a replacement for the first contract. It was undisputed that this contract 4 was the contract governing conditions of labor at the job site. It is entitled "Agreement Between Local Union #350 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and Plumbing, Heating, Oil Burner, Refrigera- tion, Piping and Air Conditioning Contractors." The contract covers the industry in the. Reno-Lake Tahoe area. By its terms the agreement was to take effect on July 1, 1958, and remain in effect until June 30, 1959. It sets forth rates of pay and hours and conditions of employment in conventional terminology. Article IV of the document is entitled "Hiring of Men." It reads as follows: HIRING OF MEN Section I. If the Employer requested the Union to furnish men, it is agreed by the undersigned that the following terms and conditions shall be observed. Section II. In hiring of men, the Employer shall be the sole judge of the number of men required and the requests for the furnishing of men shall be made to the Local Union at least forty-eight (48) hours before the men are needed. Preference shall be given to persons who have been employed in this area for the past five (5) years, if they are qualified, and the Employers agree not to hire any person to perform any portion of the work covered herein, except a bona fide registered apprentice, or a qualified journeyman having affidavits to prove at least five (5) years experience of working at the trade, and a certifi- cate of Competency showing that he has passed the Journeyman's examination as set up by the City of Reno or any other incorporated City. Section III. The Employer shall have the sole right to determine the compe- tency and qualification of men referred by the Local Union, and the right to hire and discharge accordingly. No employee shall be otherwise discharged, except for just cause. No employee covered by this Agreement may be discharged by any Employer for refusing to cross a picket line established by an Interna- tional Union affiliated with the Building and Construction Trades Department 4 General Counsel's Exhibit No. 33 in evidence. GAY ENGINEERING CORPORATION 457 of the AFL-CIO or a, Local Union thereof, which picket line has been authorized by the Local Building and Construction Trades Council having jurisdiction over the area in which the job is located. As will be noted hereafter, neither the Local nor the Company paid any atten- tion to the above provision in procuring or hiring men for the job. The Hiring Procedure Brawley testified that all the pipefitters and welders employed on the job were obtained from Local 350 which maintained an office at Reno, Nevada, and part-time offices at Al Tahoe and Kings Beach, both small villages on Lake Tahoe, California. When the Company needed men for the job Brawley notified Local 350 at Reno or Kings Beach, and the men were supplied to the Company. He also said that when men came to the job site and asked for work as pipefitters and welders, they were referred to Local 350 since the local was the source of employment. Under Brawley in authority on the job site was General Foreman Bethea, who was a member of the Los Angeles local of the International. Richard Lockie was a foreman, a member of Local 350 and union steward on the job. The principal officers of Local 350 with which the Company did business were Adam Alger, the business agent, who conducted operations principally at Reno, and Assistant Business Agent Otto Fietz, who operated from the part-time office at Kings Beach, California. Adam Alger, the business agent previously referred to, testified that at Reno the Local kept an out-of-work list. As members of Local 350 desired work they made their desires known to Alger or his office assistant who wrote their names on a piece of paper. When members of sister locals applied for work through Local 350, they deposited their traveling card from their own local with the business agent of Local 350, paid the travelers' fee, and then their name was also noted on this list. Alger was in daily communication with Otto Fietz at Kings Beach, which was close to the center of construction activity, and between them they ran the dispatch- ing of men to the various jobs in the valley. The Discrimination Against Gibford There is little or no dispute as to the facts which constitute the discrimination against Gibford. As to those events leading up to his termination on the job, Gibford testified in a frank and candid manner. I credit this portion of his testimony in full, although I do not credit his testimony as to his refusal of certain jobs, as will be hereafter noted. The facts as to the discrimination of Gibford may be summarized in the following narrative. Gibford is a resident of Rialto, California, which is located near Riverside in the same State. He is a member of Local 364 located at Riverside. He is a fitter-welder by trade and has followed that occupation for many years. Late in July 1958, Gib- ford learned through an acquaintance, Clayton Johnston, that there was a good deal of work for welders at Squaw Valley, in connection with the construction for the Olympic Games. Gibford secured a traveling card from Local 364 and journeyed to the offices of Local 350 at Reno, Nevada, for the purpose of obtaining a job. Meanwhile, Johnston, who was working for the Company on the installation at Squaw Valley, spoke to Superintendent Brawley and General Foreman Bethea on Gibford's behalf and requested that Gibford be hired as a welder. When Gibford reached Reno, he deposited his travel card with Local 350, and asked Alger what the prospects were for a job at Squaw Valley. Alger said that they were going to need more welders at Squaw Valley and that he was expecting a call from the Com- pany. Gibford left the Reno office and on the following day went to the union office -at Kings Beach. There he also registered for work, and he noted that the young lady to whom he talked placed his name in the out-of-work book at Kings Beach. That evening, Gibford learned from Johnston that the Company had asked that Gibford be dispatched to its job on that afternoon. In consequence, Gibford was at the dispatcher's window of the office at Kings Beach at 7:30 the next morning, August 6. At the office at that time was another welder, Hanson, who told Gibford that he had just finished one job, and was requesting a new assignment, and a second welder named Rex Tomlinson, who had his travel card in his hand, and who had not yet registered. Otto Fietz, the assistant business agent of Local 350, was also at the office and in the process of dispatching men. Fietz came from his office, and dispatched Hanson to a job, and then dispatched Tomlinson. Then Fietz said, "That is all for today." On the next morning, August 7, Gibford met Fietz at the Kings Beach office and asked him if there was anything new. Fietz said no, and added that he was going 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get some breakfast. Gibford said he would accompany Fietz. When they were seated in the restaurant, Gibford told Fietz that he knew he had been called for work by name on the Company's job, and that Fietz had sent Hanson and Tomlinson to jobs ahead of him although they were behind him on the out-of-work list. Gibford told Fietz that he didn't like this pushing around, so he was going to Reno to see an attorney. At this, Fietz became very excited and told Gibford that whatever else he did, he should not see an attorney as he would only hurt himself, and that if Gibford would leave the situation with him, he would try to straighten it out. Gib- ford said that it would be fine with him, if Fietz straightened it out, as his only purpose was to get a job. Both men then went to the union hall and Fietz made a telephone call. Gibford heard him say, "Gibford is here and he's going down and see an attorney and we got to do something quick." When he finished the conversation, Fietz said that he would give Gibford a work order for the Gay Engineering job for the next morning, August 8, but that Gibford was not to see any attorney. At this time Gibford asked Fietz how long he estimated the job would last. Fietz replied that he thought it would last until at least December 15. With his referral slip, Gibford went out to the job site and spoke with Superin- tendent Brawley and a foreman named Ham. Gibford turned in his referral slip, and then explained to the foreman and the union steward that he would consider it a favor if he could report for work on Monday, August 11, instead of Friday, August 8, since he wanted to go home and make arrangements to get a car and trailer, so that he would have a place to live. They agreed that he could report for work on the following Monday. Gibford reported for work at starting time on Monday, August 11. On the job he saw Fietz. Gibford completed the day's work, but about 3 o'clock Fietz came to him and told him that there was a shortage of pipe, and the last four welders hired would have to be laid off. Gibford talked with the general foreman, Bethea, who told him that the shortage of pipe had been caused by a trucking strike and that he did not know when the pipe would arrive. Bethea also gave Gibford a paycheck for his day's work. Gibford told Bethea that he hoped he would get back on the job. Bethea replied that he had an agreement with Local 350 not to ask for a man by name, that he had broken that agreement by calling for Gibford before, and that he certainly wasn't going to do it again. On the next morning, Gibford reported at the union hall at Kings Beach for work but did not receive an assignment. On Thursday of the same week, he learned from other men still employed at the job site that the Company had received a load of pipe, and that the men laid off with Gibford had been called back to work. On August 18 he went to the union hall at Kings Beach and saw Otto Fietz. He asked Fietz when he was going to be sent back on the Company's job at Squaw Valley, that he understood the pipe had arrived. Fietz replied that the Company would not have Gibford on the job, so he might as well take his travel card and leave. At this point in his testimony, the Trial Examiner asked Gibford if he had ever gone to the officials of the Company at the job site and applied for work, or acquainted them with the situation which had developed. He replied that he had not and when asked to explain said that the union rules call that conduct "soliciting a job" and in his local there was a $500 fine for such conduct. When he was pressed further as to why he didn't go to the Company about the situation, Gibford replied, "I naturally assumed that Mr. Bethea and Otto Fietz were married, as we call it in the business, so I couldn't see any point to it." Jasper J. Bethea, the general foreman and a member of the Los Angeles local, testified and in general corroborated the testimony of Gibford. Bethea said that all the men on the job were hired through Local 350, through the Kings Beach office, and that when men came to the job site seeking jobs he referred them to Local 350 for referral or clearance. Bethea first heard of Gibford through Clayton Johnston, a welder on the job. Johnston recommended Gibford as a qualified welder who was available. On the next occasion that Bethea needed men he called Fietz and asked that Gibford be sent out to the job with two other men. He mentioned Gibford by name but did not name the other two men. On the following morning the Local sent out three men. Schrecengost, Smith, and Hanson. The date on which these men arrived at the job was August 6. On the following morning, Fietz called Bethea. Fietz said that Gibford was in his office and that he was threatening to sue the Company and Local 350 because he had not been sent out when Bethea had asked for him by name. Fietz asked Bethea if he could use Gibford on the job and Bethea answered that he could. Fietz then dispatched Gibford to the job, but when Gibford arrived Bethea did not see him. GAY ENGINEERING CORPORATION 459 On the next day, Bethea learned that Gibford had come to the jobsite and talked to Brawley and Foreman Ham and had received permission to start work on the follow- ing Monday. On that day Gibford reported for work and his work was satisfactory. At the end of the day Gibford, Smith, and Schrecengost were laid off because there was a shortage of pipe due to a trucking strike. On August 14, the delivery of pipe was made and Bethea ordered three welders from Fietz. Schrecengost, Hanson, and another welder were dispatched to the job. Bethea said that he never again asked for Gibford by name because, after Gibford made his complaint, Bethea and Fietz had a talk and agreed that no more men would be requested by name; that the selection of men would be left to Fietz because he was familiar with that area, the men available, and their qualifications. In further explanation of why he didn't ask for Gibford by name again, Bethea said that all the men on the job had a friend for whom they wanted a job and he felt that he had to stop asking for men by name to prevent discord. The only explanation of the discrimination against Gibford was offered by Adam Alger, the business agent of Local 350. Alger said that he saw Gibford when he presented his travel card at the Reno office of the union. Gibford, on this occasion, told him that he wanted to work for the Company. Alger told him that at that time he did not have a call from the Company but that he was hoping to get a call from them soon. According to Alger, on this occasion he told Gibford that "there is no doubt that you will get to work there, but you surely can't expect to go to work ahead of all these members that have been out of work here anywhere from three months to a week." Gibford replied that he was going to get a place to stay at the Lake, and left the office. Alger put Gibford's name on the out-of-work list. Alger said that at that time they had a practice that a contractor had the privilege of calling for a man by name. On August 6, Fietz called Alger and told him that he had received a call from the Company asking that Gibford and two men be sent to the job. He consulted the list and told Fietz to send Smith, Schrecengost, and Hanson to the job. Alger said that he did not send Gibford to the job because he considered Gibford's conduct constituted a subterfuge by which Gibford would obtain a job before the men who were awaiting referral from the list. Alger said that he did not consider it a bona fide request from an employer asking for a'man by name, because Gibford had never before worked for the Company and the Company had no knowledge of his ability. Later, Fietz reported to Alger that Gibford had hired an attorney, Mr. Ernest Brown, and that Gibford threatened suit against Local 350 if the Local did not put Gibford to work. He then told Fietz to send Gibford to the Company. Gibford testified that he took his travel card out of Local 350 on September 24 and returned it to his own local at Riverside, California. He never again worked for the Company. The Offers of Jobs to Gibford John S. Padrick, the general manager of the Company, testified in a frank and candid manner as to his participation in the events here under consideration. He impressed the Trial Examiner most favorably. I credit his testimony fully. Padrick testified that he had conversations with Alger relative' to the availability of skilled men in the Lake Tahoe area approximately 3 weeks before June 11, 1958. In this telephone conversation Alger stated that his own local was small but he was sure that they would have sufficient qualified men in the area by the time the job would start. Padrick encouraged Alger to obtain sufficient men for the various jobs. Padrick said that his general instructions to Superintendent Brawley and General Foreman Bethea were to employ the best available men and to get the job done. He gave no specific instructions about employment through Local 350 or employment of either union or nonunion men. The first time that Padrick went to Squaw Valley was in the week that Gibford was laid off. At that time he had a discussion with Brawley and Bethea about asking for men by name. This question had been discussed at the start of the job, and it had been decided at that time that if they knew of a good man who was in the area, the superintendent and general foreman could ask for the man by name. On this occasion, however, they discussed the situation in the light of the Gibford incident and he told the superintendent and the general foreman not to ask for a man by name unless the man had definitely worked for the Company before the Squaw Valley job, and the superintendent or general foreman had personal knowledge of his qualifications. Padrick testified that he attempted to telephone to Gibford at his home in Rialto on several occasions prior to August 29. On August 28 he reached Gibford and asked Gibford if he would come to the Company's offices at Los Angeles for a 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conference. Gibford agreed and went to Padrick's office the next day. Brawley,. who was down from Squaw Valley, was in and out of the conference room while Gibford and Padrick talked . In the conference, Padrick asked Gibford if he would accept employment by the Company as a journeyman . Gibford said that he had nothing against the Company and he'd like very much to work on the Squaw Valley job. Padrick told Gibford that he was dissatisfied with Bethea as general foreman and he asked Gibford if he was qualified to handle that job. Gibford then related his experience in the industry and gave the names of certain jobs on which he had been employed in a supervisory capacity. Gibford stated that he felt qualified by experience to handle the job of general foreman. In the discussion which ensued,. Padrick told Gibford that if he made a change in the position of general foreman it would not be immediate , that Gibford would be reemployed as a journeyman, and' then a position of foreman would be created for Gibford , and ultimately the position of general foreman given to Gibford . Gibford said that all of that was very satis- factory to him except for the presence of one person on the job, Jack Bethea, the then general foreman. Gibford gave Padrick to understand that his employment by the Company would be conditioned upon Bethea being dismissed from the job. Padrick said he would talk to his employer and check out on some of the technical aspects of the job before he could say anything more definite to Gibford. At the first opportunity Padrick talked to the president of the Company about the reemployment of Gibford . When he stated that Gibford would accept reem- ployment on condition that Bethea was put off the job, the president said, "How can these guys tell us how to run our business ." Padrick then did nothing further until he was advised to make further offers to reemploy Gibford by counsel for the Company. Brawley also testified as to certain portions of the Gibford -Padrick conference. According to Brawley, in the course of these conversations , Padrick asked Gibford if he would be interested in a job at Squaw Valley as general foreman and that Gibford replied, "Yes, under certain circumstances ." On further examination as to this conversation, Brawley said that the substance of Gibford 's reply was that he didn't want to take a job under Mr. Bethea because of the trouble he had had with Local 350. Gibford was cross-examined as to the substance of this conversation. He ad- mitted that Padrick said to him, "Would you be willing to go back as a journeyman up at Squaw Valley?" When asked if he did not reply that he would not go back there as long as Bethea was there , Gibford testified that his reply was, "It would be impossible for me to go back under those circumstances." A moment later, he testified that his reply was "that it would be impossible for me to go back there at that time," because "The tie-up seemed apparent to me be- cause of the .treatment I received up there would make it impossible for me to go, up there under those circumstances." On redirect examination , Gibford was asked if he had told Padrick that he would not go back to the job at Gay Engineering unless Bethea was taken off the job. Gibford replied , "Not in those words." Then in answer to a question of the Trial Examiner, he testified , "It would be impossible under the set-up that I just went through which I assumed to be Mr. Otto Fietz and Bethea . I didn't see how it would be possible for me to go back to work under that same set-up." Late in October, Padrick , on behalf of the Company , again offered a job to Gibford. On October 31, 1958, he addressed the following letter to him: DEAR "WHITEY": Confirming our telegram of today, we hereby request that you report for work as refrigeration fitter on our job at Squaw Valley, near Tahoe City, California on Monday , November 3rd, 1958. Our job phone number is Juniper 33205 and Richard Locke is our General Foreman. Sincerely, [Emphasis supplied.] On November 3, 1958 , Gibford replied as follows: DEAR "JOHN": Received your telegram and letter of confirmation to report on the job Monday Nov. 3rd. The telegram came too late on Friday to get a "TRAVEL CARD" from this local here. I am not, and never have been a refrigeration fitter as you very well know, inasmuch as I dont care to be in- volved intentionally in any type of fraud I could not with any honesty take a job. for which I am not qualified . Thanking you for your . offer even at this late date I am yours, Sincerely, [Emphasis supplied.] GAY ENGINEERING CORPORATION 461 On November 5, 1958, Padrick again wrote Gibford as follows: DEAR "WHrrEY": We hereby request that you report for work as refrigera- tion welder on our job at Squaw Valley, near Tahoe City, California on Monday, November 10, 1958. Sincerely, [Emphasis supplied.] On November 8, 1958, Gibford replied as follows: DEAR "JOHN": Rec'd your registered letter to report for work 11- 10-58 as a refrigeration welder. My understanding from your foreman was that the job is to be shut down on Dec. 15th. Going up there for just these few remaining weeks with the expense involved would be an added hardship and aggravate the position I'm in, as I would lose what seniority I've built up waiting here at the Local here in Riverside, resulting in my going to the bottom of the list here at the worst possible time of the year. Sincerely, Explaining his refusal to take the jobs offered him by letter by Padrick, Gibford said that the first job he was offered was as a refrigeration fitter and he was not qualified for that job so he did not take it. He did not accept the second job offered by the Company because at the time he applied for employment early in August, Fietz and Bethea said that the job would last until December 15. When questioned upon that point, Gibford said that on the basis of that conversation with Bethea on approximately August 11, and without further inquiry to either the Company or Local 350, he refused the job. Counsel for the Company also called as a witness Arnold DeJulis, business mana- ger for Local 364 at Riverside, California. This witness testified that according to records in the office of Local 364, that local had offered jobs to Gibford on Septem- ber 24, 1958, September 30, 1958, October 13, 1958, and January 29, 1959, and that Gibford had refused them. In his testimony, Gibford gave his reasons for refusing these jobs. Gibford testi- fied that the first job offered him by Local 364 was as a pipefitter on the rocket installation at Redlands, California. He did not take the offer of the job because it was for the job of pipefitter and he is a welder. On October 30, 1958, he was offered a welder's job on a pipeline, and asked if he could pass a downhill welder's test. He did not take the job because he had not done downhill welding for a long time, and did not think at that time that he could pass the test. On November 13, 1958, he was also offered a 2 weeks' repair job at Needles, California. He did not take that job because by taking a 2 weeks' job he would lose his place on the out-of- work list, and might obtain a better and longer job by waiting. The rules of the local permitted him to pass up a job when he wanted to. Gibford did not testify as to why he refused any other jobs, inasmuch as the General Counsel's announced position was that he sought no back pay for Gibford after November 10, 1958. In the course of his cross-examination, Gibford was asked about the classifica- tion listed on his union card, and he admitted that his union classification was "Fitter-Welder." The Brown-Olds Remedy As indicated previously, at the hearing the General Counsel announced that he sought the application of the Brown-Olds remedy in this case in the event the dis- crimination alleged in the complaint was found . Counsel for the Company vigor- ously opposed the application of that particular remedy on both equitable and legal principles, with the result that certain testimony , documents , and stipulations were put in evidence . The representative of the General Counsel at the hearing stated frankly that he disagreed with the contentions of the Company on this point, but would enter no technical objections which might preclude counsel for the Company from presenting his contentions to the Board. Thereafter, counsel for the Company was permitted to put in evidence three letters of the General Counsel addressed to the Building and Construction Trades Department,. AFL-CIO, or similar groups operating in the construction industry. By the first of these letters , dated February 7, 1958, the General . Counsel called the attention of unions , employer associations, and employers in the construction industry to the decision of the Board in the Brown-Olds case, 115 NLRB 594, and urged the building contractors and unions to correct unlawful hiring practices then existent. The letter continues: If this is done, it may warrant the disposition , without full application of the Brown-Olds reimbursement remedy, of charges based upon illegal hiring 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrangements which have been voluntarily conformed to the provisions of the Act during the period prior to June 1, 1958. It will also warrant my recom- mending to the Board during such period a similar disposition of all cases currently pending or brought before the Board with respect to such illegal hiring arrangements. It is understood, however, that apart from the non- application of the Brown-Olds reimbursement remedy, all charges and cases relating to or arising out of illegal hiring arrangements must be processed in. normal fashion although such arrangements may have been corrected during the period prior to June 1, 1958. The second letter on the subject is dated April 23, 1958, and is addressed to, Associated General Contractors, National Constructors Association and National Electrical Contractors Association. It reads as follows: On February 7, 1958, this Agency announced that during the period March 1 to June 1, 1958, it would withhold full application of the Brown-Olds re- imbursement remedy where employers and unions voluntarily bring their union security and hiring arrangements into conformity with the provisions of the Labor Management Relations Act, 1947. Since then we have been advised that a number of unions and employers are vigorously undertaking to bring their union-security and hiring arrangements. into conformity with the Act. We have been further advised that unions and employers are also reviewing such arrangements in the light of the Board's decision in Mountain Pacific Chapter of the Associated General Contractors, Inc. (119 NLRB 883), which established certain legal requirements for exclu- sive hiring arrangements. In view of these circumstances, a further extension of time beyond June 1, 1958, is warranted so that the parties may have sufficient opportunity to com- plete their negotiations in an orderly and informed manner. We have there- fore extended to September 1, 1958, the period during which this Agency will withhold full application of the Brown-Olds reimbursement remedy where the parties voluntarily and diligently correct their union-security and hiring arrangements. The third letter is addressed to the Building Trades Employers and Unions and is. dated August 19, 1958. This letter stated in substance that unlawful hiring prac- tices in the building trades would be subject to Brown-Olds remedy after that date unless negotiations to correct the practices had already been initiated. After review- ing his previous letters, the General Counsel stated the following: Under all the circumstances, we have determined that no general extension of the policy of withholding the full application of the Brown-Olds remedy beyond September 1 is warranted. However, where the parties have initiated steps and have made genuine efforts to correct their union security and hiring arrangements prior to the September 1 deadline, the full application of the remedy may be withheld provided that conformity with the Act is achieved by November 1, 1958. The Stipulations At the hearing counsel for the Company offered to stipulate that throughout July and up to the time that the contract (Exhibit No. 33) was executed, and thereafter, representatives of the Local and the contractor-employers in that area including the Company had ,negotiated in an earnest effort to place their hiring arrangements in compliance with the Brown-Olds remedy and the Mountain Pacific case. The General Counsel said that the statement of counsel agreed with his understanding of the facts as to the efforts of Local 350 and the contractor-employers to put their hiring-hall arrangements in conformity with the Mountain Pacific case, and that these negotiations had taken place from approximately July 1 up through Novem- ber 1, 1958. The General Counsel and counsel for the Company also stipulated that the collective-bargaining agreement, and the hiring practices, of Local 350 and the employers, which are relied upon as being unlawful in the instant case, were brought into conformity with the Mountain Pacific case on or before November 1, 1958. Counsel for the Company then called Adam Alger, previously referred to, who testified that Local 350 and the contractor-employers began their negotiations on the subject of the hiring arrangements on approximately May 1, 1958, and that they were continuous thereafter. GAY ENGINEERING CORPORATION 463 Concluding Findings Upon all the evidence, I find that the Company has violated Section 8(a)(1) and (3) of the Act as set forth in the complaint. From the undisputed evidence it is clear that the Company adopted the area- industry contract when it moved into the Local's jurisdiction, and in addition, I find, it agreed with the local to secure its employees exclusively through the hiring hall operated by the Local. No other conclusion can be reached from the testimony of both Company and Local officials, as to how the hiring hall operated. Such a coordination of efforts, and efficiency of operation, could only be the result of a basic agreement. Thus, the total agreement, part written, part verbal, was violative of the Act because the hiring-hall arrangements did not meet the requirements of the Mountain Pacific decision.5 Furthermore, the undisputed evidence establishes that the Company delegated its hiring prerogative to the Local and was therefore jointly and severally liable, to- gether with the Local, for any discriminatory action by the latter in carrying out the hiring procedure.6 The undisputed evidence establishes that on or about August 6, 1958, and on or about August 14, 1958, the Local discriminatorily refused to dispatch Gibford and for that reason alone he was denied employment by the Company. It is noteworthy that the Company offered no or little evidence to disprove the facts of the discrimination against Gibford, based upon the illegal agreement, the illicit hiring hall, or the conduct of the Local in regard to Gibford. The Company centered its defense on contentions that on several occasions Gib- ford had refused offers of employment made to him, and that the Brown-Olds remedy should not be applied against the Company because the illegal agreement and hiring arrangement between Local 350 and the Company had been brought into compliance with Mountain Pacific requirements by November 1, 1958. These contentions of the Company merit more detailed discussion. From the testimony of Padrick, it is clear that at the time the Gibford dispute arose Padrick considered the dispute as involving only the Local and Gibford. At that time he did nothing. However, at approximately the time that unfair labor practice charges were filed against both the Company and the Local by Gibford, Padrick took steps directed to Gibford's reemployment. He arranged for a confer- ence with Gibford at the Company's office in Los Angeles on August 29, 1958. In that conference Gibford and Padrick discussed not only Gibford's reemployment in a position equivalent to that which he formerly held, but discussed his reemploy- ment as general manager on the Squaw Valley job, because the Company was dis- satisfied with the performance of duty of General Foreman Bethea. According to Padrick, and Brawley who also heard part of the conversation, Gibford stated that he was willing to be reemployed by the Company-but he laid down one condition, that he would not go back to work for the Company while Bethea was on the job. For his part, Gibford said that he considered reemployment by the Company "impossible" in view of the continued employment of Bethea, and Bethea's rela- tionship with Fietz. Upon that testimony, I find that in this conversation Padrick offered Gibford reemployment on the job as a journeyman, with the prospect of Gibford becoming a temporary foreman, and ultimately general foreman of the Squaw Valley project, and I also find that Gibford agreed to accept the position, but upon the condition that Bethea be removed from the job prior to his reemploy- ment. Under the circumstances Gibford could not legally condition his reemploy- ment upon the discharge of Bethea, so his conditional acceptance was tantamount to a refusal of the job. Thereafter the Company made Gibford other offers of employment, but in each instance Gibford had an excuse for not accepting the job. Although his classifica- tion is that of "fitter-welder," when the Company offered him a job as "refrigeration fitter" he refused it on the ground he was a welder. When the Company offered him a job as a "refrigeration welder," he refused it on the ground that the job would last only a short time. Other jobs he refused because one was for a "fitter"; another for a "downhill welder" and he could not pass the test; and other jobs he refused in the hope and expectation of getting a better or longer job. This is not the con- duct of a man sincerely receptive to reasonable offers of employment. From all of Gibfords conduct in this regard, I must conclude that for some reason known only to himself, after his discriminatory discharge Gibford was determined to accept employment from the Company only if Bethea was dismissed from the job, and to 5119 NLRB 883. 6lmparato Stevedoring Corporation, 116 NLRB 667, enfd. 250 F. 2d 297 (C.A. 3). 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accept employment from no one else. I find that Gibford refused valid offers of reinstatement made by the Company on October 31 and November 3, 1958, in addition to the offer made and refused on August 29, 1958. Because the General Counsel has asked for the . application of the Brown-Olds remedy in this proceeding , a request which is vigorously opposed by counsel for the Company, certain testimony, stipulations, and documents were received in evidence at the hearing . Although counsel differed as to the propriety of applying the remedy in this case, they were in agreement that the facts presented a question for the Board . Consideration of the question requires that the posture of the proceeding as originally brought, and as it stands now, be examined. The consolidated complaint alleged that Local 350 and the Company jointly en- forced an agreement for the operation of a hiring hall which violated the require- ments of the Act and was the instrumentality of discrimination against Gibford. Prior to the hearing, the General Counsel and Local 350 arrived at a settlement which required the payment of back pay to Gibford and the posting of the conven- tional notices. Counsel for the Company urges that the imposition of the Brown- Olds remedy against the Company alone in this proceeding would be inequitable and unjust, as it would allow the Local to retain the dues, fees , or other money unlaw- fully exacted as the price of employment and require the Company , who has never collected or had in its possession any such payments, to pay to its employees hired pursuant to the illegal contract , such sums. Counsel urges that such an ultimate disposition of this proceeding would permit Local 350 to escape without disgorging the proceeds of its illegal activity, and transfer the burden of reimbursement to the Company, who never at any time collected or had in its possession such unlawful proceeds . Counsel for the Company urges that such a result would be manifestly inequitable and unjust , and at variance with the Board's traditional policy of fashion- ing remedies in accordance with accepted principles of law and equity. Recently, in Morrison-Knudsen Company, Inc., 123 NLRB 12, the Board rejected considerations similar to those now advanced . In that decision , a panel of the Board wrote as follows: Contrary to the Trial Examiner, we do not believe that the fact that some of the Respondents originally joined in this proceeding had obtained concessions in the course of settlement of charges against them is sufficient reason to omit the Board's established remedy for the unfair labor practices of those whose cases were litigated herein. That statement would appear to be diapositive of the question here, except for one important factor present here which apparently was not present in the Morrison- Knudsen case-the stipulations of the General Counsel. The record herein establishes that the General Counsel by the letters in evidence assured employers and unions in the construction industry that if they voluntarily undertook to eliminate their illegal hiring arrangements prior to June 1, the General Counsel would recommend disposition of pending cases, and cases brought in the interim, without full application of the Brown-Olds remedy. Thereafter this "reprieve" or "moratorium" was extended by further letters to November 1, 1958.7 In this proceeding , it has been stipulated that the Company herein and Local 350 initiated negotiations, within the time specified , and placed their hiring arrangements in conformity with the Mountain Pacific doctrine by the deadline date of November 1, 1958. Thus, it would appear that the parties had brought themselves within the terms of the reprieve or moratorium. Furthermore, it appears that in the settlement made with the Local the General Counsel gave effect to his stipulation set forth in his letters and did not require application of the Brown-Olds remedy. Under the circumstances , I find that the application of the Brown-Olds remedy herein would be inequitable, and contrary to the stipulations of the General Counsel contained in this record . For the reasons stated, the General Counsel's request that the Brown-Olds remedy be applied herein against the Company alone is denied, and the remedy will not be recommended hereafter. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company and Local 350, set forth in section III, above, which occurred in connection with the Company's operations set forth in section I, 7 These terms are the General Counsel's. See address of Jerome D. Fenton, General Counsel, before 'Smerco Hacca, at 1959 Southeast Trade Exposition, Atlanta, Ga., March 21, 1959. GAY ENGINEERING CORPORATION 465 above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Company and Local 350 maintained and enforced the terms and provisions of a collective-bargaining agreement and followed a practice whereby employees of the Company were secured exclusively through a dispatching procedure operated by the Local, and whereby the Company delegated its hiring prerogative to the Local, thereby encouraging membership in Local 350, it will be recommended that the Company cease from performing said contract or maintaining any such hiring arrangement or practices with Local 350, except such as are author- ized by Section 8(a) (3) of the Act. Since it has been found that the Company has discriminated in the hire and tenure of employment of Leslie P. Gibford, it will be recommended that the Company make Leslie P. Gibford whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the period of such discrimination. The loss of earnings will be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. The period of discrimination mentioned above shall start on August 14 and end on August 29, 1958, for the following reasons. Although Gibford suffered discrimina- tion on August 6, and was not dispatched to employment until the following day, no loss of pay resulted for on that day Gibford requested the Company to defer his employment until August 11. From those circumstances, I conclude that Gibford was not ready to begin work until August 11, Monday of the following week. On August 11, 1958, Gibford worked, and the evidence establishes that he was laid off for a non-discriminatory reason, lack of pipe. However, on August 14, 1958, the pipe was delivered, and the men previously laid off with Gibford were redispatched to the job. On that date, discrimination resulting in loss of pay to Gibford actually commenced. The period shall end on August 29, 1958, the date upon which Gibford refused the first valid offer of reinstatement by the Company, as found hereinabove. It is also recommended that the Company be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amounts of earnings due. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union 350, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, which admits to membership employees of the Company. 2. Gay Engineering Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the terms and conditions of employment of Leslie P. Gibford, thereby encouraging membership in Local 350, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By maintaining and enforcing the terms of a collective-bargaining agreement with Local 350, whereby its employees were secured exclusively through the Local's hiring hall which was not operated in conformity with the Act, and by delegating its hiring prerogative to Local 350, the Company discriminated against employees in violation of Section 8(a) (1) and (3) of the Act. 6. Ttie aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 525 543-60-vol. 124-31